Convict petitions Obama on crack cocaine penalty

by Mimi Hall - Apr. 28, 2010 12:42 PMUSA TODAY

The judge who followed the law and sentenced Kenneth Harvey to life in prison for possessing crack cocaine recommended that he be granted clemency after 15 years. The appeals court that heard Harvey's case a year later agreed.

That was two decades ago. Harvey, 44, is still behind bars, paying dearly for what his family describes as falling in with the wrong crowd as a young man. Even though his two prior drug convictions didn't require prison time, the law dictated that for a third offense and with more than 50 grams of crack, he had to be sent away for life.

"He's a very loving person who doesn't deserve to be there," says his sister-in-law Venice Harvey, 49, of Gaithersburg, Md.

Harvey's family wants him back home - and they thought when Barack Obama was elected president, they'd have a shot.

Now, they're not so sure.

Obama has not approved a single request for a pardon or a shorter prison sentence since he took office, despite having more petitions before him - 2,361 according to the Justice Department - than any previous president at this point in his term.

The White House won't discuss the issue, other than to say Obama has asked Justice to review how it processes petitions and makes recommendations.

Meanwhile, Harvey's family waits. They are nervous about going public with his story because of a stigma about prisoners and drugs. Family members such as his sister-in-law stress Harvey's background: His dad retired as a Los Angeles Police Department mechanic. One sibling retired from the Air Force, one runs a tire company, another worked in the airline industry.

Venice Harvey says they want people to know that the family members are hard-working and law abiding. That Harvey's parents raised good kids. That youngest son Kenneth took a brief wrong turn 20 years ago. That he's a good man now.

They also want to add their voices to those pressing Congress and the White House to consider the dramatic growth in the federal prison population and re-evaluate whether some of those serving long sentences really need to be there.

"Ultimately, the question is: By incarcerating all these people, are we solving any problem? No," says Baylor University law professor Mark Osler, a former federal prosecutor who favors eliminating guidelines set in 1986 that call for much longer sentences for crack offenses than for those involving powder cocaine.

Concern about the sentencing guidelines is bipartisan: George W. Bush also questioned the merit of such long prison terms when he was running for the White House.

The Justice Department won't say how many of those who have petitioned Obama for clemency were sentenced under the guidelines. A campaign launched by Osler and the American Civil Liberties Union suggests quite a few.

In Congress, the Senate has passed the Fairness in Cocaine Sentencing Act, which drops the sentencing disparity, with bipartisan support. The House has yet to act. A new law, however, would not help those already serving long terms.

In 2007, Obama said he'd like to change the law and shorten sentences. In a speech at Howard University, he said: "If you're convicted of a crime involving drugs, of course you should be punished. But let's not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the color of the skin of the people using them."

Harvey's lawyer says there's a fairness issue at stake: "If we think those sentences are unjust, how can we do nothing for those who are serving them?" asks Margaret Colgate Love, the Justice Department's pardon attorney from 1990 to 1997.

If Harvey was released from his Colorado lockup, his sister-in-law says he could live with family. "He would have good moral support and Christian support," she says. "He is not a guy who would come back and be on the streets."

He could also get to know the nieces and nephews he's been sending letters to for years.

"We've talked to them" about their uncle, Venice Harvey says. "They know about making bad decisions. It happened to Kenny. He was young. He got in with the wrong crowd."